ANALYSIS OF THE DOJ’S WHITE PAPER AS RELEASED FEBRUARY 5, 2013
by KrisAnne Hall, ©2013, blogging at KrisAnneHall.com
TABLE OF CONTENTS
II. IMMINENT THREAT OF VIOLENT ATTACK AGAINST THE U.S
III. BURDEN OF PROOF REQUIRED FOR THE GOVERNMENT TO KILL CITIZENS
IV. Is it really just senior operational leader of al-Qua’ida or an associated force of al -Qua’ida?
V. JUST INTERNATIONAL OR IS THE DOOR OPEN FOR DOMESTIC ASSASSINATION?
The Department of Justice has released a document that they claim justifies the killing of U.S. citizens in the name of national security. Michael Isikoff from NBC news publicized this document that sets out the “legal” authority of the President to assassinate US Citizens without any trial, without any hearing, and as the legal analysis details without any evidence or even knowledge of imminent attack. It’s called a “Department of Justice White Paper.” The DOJ’s White Paper is 16 pages of complex legal argument justifying the assassination of US citizens. The following is my analysis of this paper and how it applies potentially to all U.S. Citizens.
This DOJ legal argument attempts to make it appear that only “U.S. citizens who are senior operational leaders of al-Qua’ida or an associated force of al-Qua’ida” are eligible for assassination. However, great care and effort was made to leave those definitions wide open for future interpretation to include any U.S. Citizen, domestic or abroad, who poses a possibility of threat of violent attack against the United States even when there is no evidence to support such an accusation.
The DOJ indicates its purpose is to justify the use of “lethal force, in a foreign country outside the area of active hostilities, against a U.S. citizen who is a senior operational leader of al-Qua’ida or an associated force of al-Qua’ida.” However, through some clever transitions, the DOJ moves beyond “foreign countries” to include any geographic area and authorize lethal force against any person classified as a potential hostile, by the President or any “high level official of the U.S. government.”
According to the DOJ, killing a U.S. citizen requires that three criteria be met. Page 1 of the DOJ Analysis lists these:
1. An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
2. Capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
3. The operation would be conducted in a manner consistent with applicable law of war principles.
NOTE: There is NO MENTION of al-Qua’ida or foreign soil in the three criteria necessary to authorize the assassination of U.S. citizens.
II. IMMINENT THREAT OF VIOLENT ATTACK AGAINST THE U.S.
The definition of imminent threat is not as simple as Webster’s definition of “Literally, shooting over; hence, hanging over; impending; threatening; near; appearing as if about to fall on;.” The justification for taking proactive measures against an “imminent threat” are listed throughout the paper, but it can be simply stated that DOJ claims the government has an inherent right to “national self-defense” and therefore can preemptively act even without any evidence.
Our first clarification regarding “imminent threat” involves a balancing act between the target’s “interest in his life” and the “United States’ interest in forestalling the threat of violence” (page 2 paragraph 2). The application of “imminent threat” necessitates anticipating a potential threat and acting proactively to prevent the threat. The DOJ takes a step away from the established criteria of “imminent threat of violent attack” by including persons who are “engaged in plotting against the United States…outside the area of active hostilities.” (page 2 paragraph 2) This expanded definition includes the anticipation and preemption of a threat from someone merely “engaged in plotting against the U.S.” even if that threat is not in or near the current “hostility.”
The DOJ claims the authority to expand the definition of imminent because their objective “…demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat… Imminence must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.” (page 7 paragraph 3) This “broader concept” must be left open for further expansion, according to the DOJ because what constitutes imminent threat “will develop to meet new circumstances and new threats…” (page 7 paragraph 2) The DOJ demands this living, breathing interpretation, because “the U.S. government may not be aware of all al-Qua’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike…” (page 8 paragraph 1)
DOJ has thus “broadened the concept of imminent” to include something called a “window of opportunity.” Therefore this “window of opportunity” justifies the assassinate of U.S. citizens even when there the government “may not be aware” of an actual plot.
So, in summary of this section we can know that the DOJ justifies it’s authority to assassinate a US citizen based upon the necessity to make a preemptive strike against a target who is “engaged in plotting against the U.S.” within a “window of opportunity.” This ever-changing and expanding definition of “imminent threat” is no limitation at all. It is an amorphous principle with no clear boundaries.
III. BURDEN OF PROOF REQUIRED FOR THE GOVERNMENT TO KILL CITIZENS
Every legal procedure has a burden of proof. In criminal court, to put someone in prison or sentence them to death the burden that must be met by the government is “beyond and to the exclusion of every reasonable doubt.” In order to get a search warrant the Fourth Amendment requires the government to meet the standard of “probable cause” as reviewed and approved by a judge. The Fifth Amendment requires that before the government can take someone’s life they are guaranteed an indictment by a grand jury and conviction by a jury of their peers. One would think that at least these standards would apply if the government is going to take a citizen’s life. Unfortunately that is not the case and the only reference the DOJ makes to the Constitution is to point out that it DOESN’T APPLY!
“Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and Fourth Amendment, that individual’s citizenship would not immunize him from a lethal operation.” (page 2, paragraph 2 White Paper)
“The realities of combat render certain uses of force necessary and appropriate, including force against U.S. citizens who have joined enemy forces in the armed conflict against the U.S. and whose activities pose an imminent threat of violent attack- and due process analysis need not blink at those realities.” (page 6 paragraph 2)
“Under such circumstances, the intrusion on any Fourth Amendment interests would be outweighed by the “importance of the governmental interest [that] justify the intrusion. (page 9 paragraph 4)
In the DOJ’s White Paper, any notion of placing the statements above in a battlefield context is nullified by the DOJ’s assertion that a targeted citizen may simply be plotting and may not actually pose a threat of impending violent attack and may be far removed from the actual hostility.
So what is the burden of proof for the government to justify its assassinations? According to the DOJ, the government must simply “demonstrate” (page 4 paragraph 1) that the United States’ interest in preventing an anticipated threat of violence outweighs “the person’s interest in his life.” Although we might think the scales will tip heavily toward life, the government does not agree. Citing their standard of proof, the government quotes the court of Cf. Hamdi, 542 U.S. at 535: “the Court accords the greatest of respect and consideration to the judgments of military authorities…the scope and discretion of that discretion is necessarily wide.” (page 7 paragraph 1) And of course in this case, that scope the government asserts, would be transferred to the “high-level official of the U.S. government” making that determination.
As if the standard was not low enough, the DOJ makes the following assertion:
“First, the condition that an operational leader (note, not limited to al-Qua’ida anymore) present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack…will take place in the immediate future.”(page 7, paragraph 2)
In one statement the DOJ has wiped away all Constitutional protections, denied the review of a judge, a jury of your peers, and eliminated the requirement of “imminent threat”. The DOJ continues by declaring that the government must have the “inherent right to self-defense” and act “even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.” (page 7 paragraph 2)
What are the “legal” sources the DOJ refers to when determining their burden of proof?
1. International Law;
2. International Chapter of Red Cross;
3. Title 18;
4. Executive Order 12333; and
5. Harold Hongju Koh, legal advisor, U.S. Department of State, to name a few…
No reference to the Constitution as a standard, only as an impediment to what the government wants to do. But, the DOJ makes haste to let the Supreme Court know they have no jurisdiction to determine whether these interpretations are right or wrong.
“Finally, the Department notes that under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations.” (page 10 paragraph 1)
“A judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.” Page 10 paragraph 1
(It is ironic that the DOJ, in justifying their murder of U.S. Citizens without due process uses court case law as validation, but refuses the courts access to their judgments. Yet, when the States properly declare the Supreme Court ineligible to expand the power of the federal government, the federal government is quick to declare the States out of order. This is truly the placing the Executive branch in supremacy to all….hence a monarchy!) Don’t worry, the government promises that if it does anything wrong, it will police itself:
“The legislature may design some criminal prohibitions to place bounds on the kinds of government conduct that can be authorized by the Executive.” (page 12 paragraph 2)
In summary of this section, the DOJ claims their burden of proof required to take a citizen’s life is merely based upon the discretion of the “informed, high-level official of the U.S. government” imposed upon the government’s “inherent right to self-defense.” No clear evidence or intelligence is needed to demonstrate the threat pose by the target. The Constitution, the Supreme Law of the Land, is not looked to as a standard. The courts have no authority to question the legality of this policy. (How can authorizing this level of arbitrary power be acceptable in the eyes of our Congress who have sworn to support and defend the Constitution of the United States? How can these elected representatives justify the worst arbitrary power and the most destructive authority to our individual liberty?)
IV. Is it really just senior operational leader of al-Qua’ida or an associated force of al-Qua’ida?
The first paragraph of the DOJ legal analysis asserts that lethal, stealth attacks are limited to just senior operational leader of al-Qua’ida or an associated force of al-Qua’ida. But that does not follow all the way to the end of their analysis. As previously shown in section I, the “list” of qualifications required to kill a U.S. citizen does not limit the DOJ to al-Qua’ida. But the analysis of the DOJ also slowly and progressively changes that limitation to include anyone, anywhere. The first clear transition begins on page 5 in paragraph 2, where the language describing the persons subject to lethal attack begins to get vague:
“In such circumstances, targeting U.S. Citizens of the kind described in this paper, would be authorized…”
Even before page 5 paragraph 2 the “kind” of person “described” is not limited to al-Qua’ida and the slippery slope continues all the way to the end. Watch this transition:
1. An enemy force that poses an imminent threat of violent attack (page 1 paragraph 2)
2. A U.S. citizen who is plotting against the United States. (page 2 paragraph 1)
3. U.S. citizen who is part of enemy forces. (page 3 paragraph 1)
4. Those who belong to armed forces OR armed groups (page 3 paragraph 1)
5. A party to an armed conflict (page 4 paragraph 3)
6. Senior operational leader of an enemy force planning violent attacks against Americans (page 6 paragraph 1)
7. U.S. citizens who have joined enemy forces in the armed conflict against the U.S. and whose activities pose an imminent threat of violent attack (page 6 paragraph 2)
8. U.S citizen who…is an operational leader continually planning attacks against U.S. persons and interests…(the DOJ then lists the criteria first listed on page 1, but NOT limited to al-Qua-iada any longer)(page 6 paragraph 3)
9. individuals continually planning to kill Americans (page 7 paragraph 3)
10. An operational leader of an enemy force and an informed, high-level government official has determined that he poses an imminent threat of violent attack against the U.S. (page 9 paragraph 4)
11. Enemy leader undertaken in self-defense…authorized by an informed high-level government official…would fall within a well-established variant of the public authority justification…(page 14 paragraph 2)
So in summary of this section, the any limitation of the DOJ’s initial definition of a “target” to persons who are “U.S. citizens who are senior operational leaders of al-Qua’ida or an associated force of al-Qua’ida” is completely removed by the time we get to page 9.
V. JUST INTERNATIONAL OR IS THE DOOR OPEN FOR DOMESTIC ASSASSINATION?
The DOJ begins their analysis by asserting that the use lethal force is restricted to U.S Citizens who are in a “foreign country outside the area of active hostilities.” But, once again, there are many transitions within this paper that nullify this assertion.
The DOJ begins by referring to the war against al-Qua’aida as a “non-international armed conflict.” A non-international armed conflict is one “between a nation and a transnational non-state actor, occurring outside the nation’s territory.”(page 3 paragraph 2) What that means is that this conflict is not defined by borders or nationalities, but is expanded to include a global arena with groups of people only identified by classification of behavior and not acting by the authority of a single government. Additionally, the DOJ implies there is a limitation that this type of conflict must occur “outside the nation’s territory.” However, the DOJ quickly does away with that limitation by showing that “any U.S. operation would be a part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.” (page 3 paragraph 2) The DOJ continues to justify this move away from international limitations by indicating that even the “AUMF itself does not set forth an express geographic limitation on the use of force it authorizes.” (page 3 paragraph 2)
The DOJ then further abolishes this restriction of an international field:
“The Department has not found any article of authority for the proposition that when one of the parties to an armed conflict plans and executes operations in a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war…” (page 4 paragraph 3)
The DOJ further alludes to the expansion from the international limitation by reminding that a “terrorist war does not consist of one isolated incident that occurs in the past. It is drawn out, patient, sporadic pattern of attacks. It is very difficult to know when or where the next incident will occur.” (page 7 paragraph 2)
“Delaying action against individuals continually planning to kill Americans until some theoretical end stage the planning for a particular plot would create an unacceptably high risk that the action would fail and that American causalities would result.” (page 7 paragraph2)
The final evidence that brings the DOJ’s legal justification for killing U.S. citizens home to domestic soil must admit the application of sections 1021 and 1022 of the NDAA of 2012 (modifications made through NDAA 2013 were essentially irrelevant). The tie that binds these two documents is the term “laws of war.” Throughout the DOJ’s paper they refer to their authority to engage in the killing of U.S. citizens as authorized under the “laws of war.” (see page 8 paragraph 4, page 9 paragraph 1, page 10 paragraph 2, page 14 paragraph 2, page 15 paragraph 3, page 16 paragraph 2) This is significant because the NDAA of 2012 not only extends the “laws of war” outside a formal declaration of war to the vague application of “hostilities,” but also allows the president the authority to transfer the powers under the “laws of war” to the FBI. This is not my interpretation, but that of the current administration and their interpretation of powers authorized through the section 4 waivers of the NDAA 2012.
“Because I believe our national security professionals should decide the best way to detain and prosecute terror suspects, I also opposed provisions of the defense authorization act that would allow only the military to handle terror suspects…Efforts to change that language failed in the Senate. But after negotiations with the House of Representatives, the final legislation preserves the rights of the Federal Bureau of Investigations and allows the President to waive the requirements for military custody when necessary to preserve national security.” Sen. Bill Nelson, (D-FL)
In conclusion of this section, the limitation of “foreign” U.S. citizens is systematically wiped away by the elimination of “geographic limitations,” ability to “follow” terrorist fighters to a “base in a new nation,” the necessity of acting quickly to pro-actively “forestall the threat” of persons who are “engaged in plotting against the United States,” and the transfer of power under the laws of war to the FBI.
Although the DOJ crafts an opening paragraph to limit their legal justification to kill U.S. citizens to only those involved with al-Qua’ida on foreign soil, those limitations are completely dissolved by the time we get to the conclusion of the their analysis. Strangely, the DOJ tries to reinforce their initial limitations by restating their opening paragraph in their final paragraph and claiming that they have in no way attempted to “assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances.”
What is wrong with the Executive branch of a government engaging in the assassination of our citizens, who are classified by the government as combatants against this country, absent due process? If they can do this without a “speedy and public trial,” we are trusting the government to convey truthful and accurate information to justify their actions. Our founders were intimately aware that the governments often have their own perspective on things and have the power and tools to justify their actions at all levels. Their point would be that a government not only has an agenda, but also has the power to control and manipulate information. Richard Henry Lee stated that we must not only guard against “what men will do, but what they may do.” They knew the power of the government must be closely guarded in favor of Liberty.
What about the fact that the government has already redefined who is a “terrorist”? Just look at Janet Napolitano’s report, as head of the Department of Homeland Security, warning America regarding who is a terrorist; “rightwing extremists” concerned about illegal immigration, abortion, increasing federal power and restrictions on firearms – and returning war veterans.
“Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.”
Our founders knew that in a government that has the ability to define the enemy, and the uninhibited inclination to define its own citizens as terrorists, tyranny is already established. Unrestrained power of the government must be continually checked against the Liberty of the people.
Our founders also knew some things that we have forgotten, or more likely, have never been taught. First and foremost our founders knew deep in their soul that “Liberty must be supported at all hazards.” (J. Adams, 1765), It is Liberty that is the most important asset to any peace loving nation. Benjamin Franklin is quoted to have said, “Those who would trade Liberty for temporary security deserve neither Liberty nor security.” How could he make such a bold statement? Because he knew from history that trading Liberty will NEVER result in greater security and once Liberty is traded, you never get it back. I find it very telling that our founders never said, “Peace must be supported at all hazards.” Eliminating enemy combatants –good; assassinating US citizens…a destructive assault on Liberty. This is the Constitutional quagmire we have created by maintaining a completely inept political administration that is completely ignorant of the Constitution and the principles of Liberty it protects.
“To bereave a man of life, [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution”. (Alexander Hamilton, Fed. Paper #84, quoting Justice Blackstone)